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7
The Cortes and the
Making of Laws
[112] Discussion of the legislative role of the cortes has evoked a considerable diversity of opinion. Martínez Marina, stressing the separation of powers, assigns the executive authority to the king and the legislative power to the cortes. Colmeiro argues that the cortes was merely a consultative body which could petition the king for redress of grievances, but that only he could legislate and for that matter could do so independently of the cortes. Piskorski, however, holds that at least until the end of the fourteenth century, the cortes collaborated with the king in making law. Legislation, according to Procter, "was certainly one of the functions of the cortes during the second half of the thirteenth century, although not all legislation was promulgated in the cortes." (1)
The issue has been confused by the application of modern ideas to a medieval problem. Rather than adopt an a priori stance conditioned by modern conceptions of how laws are made, we have to look at the way law was made in the Middle Ages and then ask what roles the king and the cortes had in this process.
The Royal Right of Legislation
[113] The Visigothic Code (I.1.1-9) recognized the kings right to make new laws, but the right was exercised infrequently before the twelfth century. Alfonso IX, for example, "with the consent and common deliberation of all," enacted decreta or constitutiones in the curiae ofLeón in 1188, 1194, and 1208. The bishops and magnates surely were among those who deliberated with him, but it is not clear that the townsmen were also involved.(2)
The law codes compiled by Alfonso X--the Espéculo (I.1.3), Fuero real (prologue, I.6.1 -5), and Siete Partidas (I.1.11-12)--stated emphatically that only the king could make new laws. He could do so "because we have no one greater above us in temporal affairs" and because Roman law, canon law, and the "laws of Spain made by the Goths" affirmed that emperors and kings "have the power to make laws, to add to them, to diminish them and to change them whenever necessary" (Espéculo, I.1.3, 13).(3)
The point of these texts was to establish the principle that the king could make laws, a matter of no small importance if one recalls that for much of the early Middle Ages law was thought of as customary and unenacted, having existed substantially unchanged for as long as the mind of man could remember. The new conception, derived from Roman law, treated law as something dynamic and attributed to the king the chief responsibility for seeing that law corresponded to reality.
In certain versions of the Partidas (I.1.17-19), the kings sole right to make the laws was limited. His obligation to seek the counsel of knowledgeable, intelligent good men and experts in law, before amending, undoing, or adding to the law, was emphasized, because law is "so much better and stronger the more it is agreed upon and the more it is understood."(4)
None of the texts speaks explicitly of the cortes in this respect, but the statement that the king, before amending the law, ought to consult as broad a group of good men as possible and from as many lands (tierras) as possible--presumably from all the kingdoms subject to his rule--indicates that more than a small coterie of royal counselors or professional lawyers was intended. This new conception of legislation implied that whereas the king was ultimately the authority promulgating the law, all the men of the realm had a share in the work of making, altering, or undoing the law. How they would participate in that task [114] was not spelled out, but evidence from the period suggests that they utilized the cortes.
The Alfonsine Codes
There is a good reason to believe that Alfonso X promulgated the Espéculo and the Fuero real in the cortes. By means of these codes, he hoped to implement his fathers determination to ameliorate the consequences of the diversity of laws prevailing in his dominions. As the traditional laws by which all men were governed would be altered, the Roman legal principle, quod omnes tangit, ab omnibus debet approbari, required that the king obtain consent. The Partidas (I.2.9) affirmed this, stating that a fuero ought to be made "with the counsel of good men, knowledgeable men, and with the will of the lord and the consent of those upon whom it is imposed."(5)
Alfonso X declared in the prologue to the Espéculo that it was "a mirror of law, whereby all the men of our realms and our dominions may be judged." So that all men would be able to know the law,
we give a book, sealed with our leaden seal, to each town, and we kept this written text in our court, from which all the others that we gave to the towns are taken. Therefore, if a doubt should arise concerning the understanding of the laws, and appeal should be made to us, the doubt might be resolved in our court by this book that we made with the counsel and consent of the archbishops, bishops of God, magnates, and the most honored experts in the law that we could have and find, and also of others who were in our court and our kingdom.The passage quoted refers first of all to the Fuero real and then to the Espéculo. The book "sealed with our leaden seal" was the Fuero real, a code of municipal law given by the king to each town to supplement the older fueros. Copies of the Fuero real were taken from "this written text" kept in the royal court, that is, the Espéculo. The Espéculo would be applied in the royal court and would also be used to adjudicate appeals brought from the municipal courts where the Fuero real was employed. It was precisely to minimize the divergence between local law and the law of the royal court that the Espéculo was used as a basis for the structure of the Fuero real and as a source of some of its contents. The Espéculo was a mirror of law, in which all other laws, including the Fuero real, were reflected.(6) [115] Historians have generally assumed that the Espéculo, incomplete (only five of its seven books are extant) and undated, was never promulgated. From the passage cited we know that the king "made" or "enacted" (feziemos) it with the counsel and consent of the prelates, nobles, jurists, and other men of his court and kingdom. If the other men of his kingdom included representatives of the towns, then it would seem that the king was describing a meeting of the cortes.
Robert MacDonald suggests that Alfonso X, in his concern to assure the succession of his daughter, Berenguela (born on 6 December 1253), may have promulgated the Espéculo in the cortes of Toledo in March 1254. All those present pledged homage and fealty to her, admitting her right to rule if there were no male heirs. Louis of France, Berenguelas husband-to-be, was informed of this fact on 5 May 1255 at Palencia. Pointing out the similarities between the contract drawn up for the projected marriage and the law in the Espéculo (II.16.1) concerning the inheritance of the throne by the oldest son, or, in default of male heirs, by the oldest daughter, Craddock proposes that the law was composed with an awareness that she was the kings only heir at that time.(7)
The Ordinance enacted at Zamora in 1274, on the other hand, lends support to the view that promulgation occurred at Palencia in the spring of 1255. In article 4, Alfonso X stated that fees for charters sealed in the royal chancery should be no greater than those set down "in his book which was made por corte in Palencia, in the year that Edward married." This passage refers to a section of the Espéculo (IV.13.4), where a schedule of fees for sealing charters was set down, and to the marriage of Edward of England to the kings sister at Burgos in November 1254. The promulgation of the Espéculo, therefore, could be dated at Palencia in the spring of 1255.(8)
MacDonald proposes three possible explanations: (1) that the Espéculo and Fuero real were proclaimed in their actual form in the cortes of Toledo 1254 and promulgated in finished form, por corte, in Palencia 1255; (2) that both were promulgated in their normal form in the cortes of Toledo and proclaimed in finished form by the court at Palencia; or (3) that the Espéculo, redacted before December 1253, was promulgated de jure in the cortes of Toledo 1254 and was put in force de facto by the court at Palencia in 1255. Given the fulfillment of some of the dispositions of the Erpéculo before May 1255, MacDonald favors the third alternative.(9) Insofar as Alfonso X was conscious of the significance of Toledo, his birthplace, as the ancient seat of the Visigoths and of the [116] emperors of Spain, I am inclined to believe that he seized the occasion of his first cortes there in 1254 to promulgate both the Espéculo and the Fuero real.
In the prologue to the Fuero real, Alfonso X tells us that because many cities and towns lacked a fuero and asked him to give them one, he did so, after taking "counsel with our court and with experts in the law." The request for a fuero may have been made in the cortes of Seville 1252 or (at the latest) Toledo 1254. The book was finished by the beginning of 1255 when he gave it as a supplementary law ("in a book sealed with our leaden seal") to Aguilar de Campóo and Sahagún.(10) Some of the extant codices were addressed to "many cities and towns of our realms," while others were directed specifically to Burgos, Valladolid, Santo Domingo de la Calzada, Carrión, and Arévalo. To accommodate all the towns, anywhere from fifty to one hundred copies of the text were probably needed, making the task of duplication truly formidable. The copies were dated variously at Valladolid on the day each one was completed (not the day of promulgation), that is, 14 June, 18 July, 25 August, and 30 August 1255.(11)
Other sources testify to the variety of names by which the Fuero real was known: the "book sealed with our leaden seal," the Fuero de las Leyes, the Fuero castellano, the Libro del Fuero, and the Fuero del Libro. The royal chronicle, alluding perhaps to the derivation of the Fuero real from the Espéculo, noted that the king ordered the composition of the "Fuero de las leyes, in which he summarized very briefly many laws and he gave it as a fuero to Burgos and to the other cities and towns of the kingdom of Castile." The Ordinance of Zamora was published nineteen years after the king gave the Fuero castellano to Burgos on 15 August 1255 at Valladolid. In 1313 Infanta Blanca, granddaughter of Alfonso X, gave Briviesca the Libro del Fuero that the king had given to Burgos and to the "whole realm." The text was finished at Valladolid on 18 July 1255. The prologue to the Fuero viejo, written around the middle of the fourteenth century, relates that the king gave the Fuero del Libro to the towns of Castile in 1255.(12)
We also know that the Fuero del Libro was given to the towns of Extremadura. In an assembly of the Castilian and Extremaduran towns held at Segovia inJuly 1256, Alfonso X issued at least ten charters, giving individual towns "that fuero that I made with the counsel of my court, written in a book, and sealed with my leaden seal." In subsequent [117] years, similar charters, with some variations, were given to other towns. In 1264 the king confirmed the privileges of all the towns of Extremadura, including "the Libro del Fuero that we gave them."(13)
The charters of 1256 are proof that the book "sealed with our leaden seal" mentioned in the prologue to the Espéculo and given to each town was the Fuero real, rather than the Espéculo itself as García Gallo erroneously insists. These charters, nevertheless, do not mark the initial cession of the Fuero real to specific Castilian and Extremaduran towns. On the contrary, the main purpose of these charters was not to grant the Fuero real but to render military service more attractive to the urban knights by giving them tax exemptions. In addition to those new benefits, the king recalled that the Fuero real was a favor already granted.(14)
Thus, the Fuero real was the book "sealed with our leaden seal" given to each town, as recorded in the prologue to the Espéculo; it was the same as the "fuero that I made with the counsel of my court, written in a book and sealed with my leaden seal" mentioned in the charters of 1256. Prepared by jurists in the kings service, partly in response to a petition presented by the towns (perhaps in the cortes of Seville 1252) for a new and better fuero, the Fuero real was promulgated together with the Espéculo, probably in the cortes of Toledo 1254. The cortes evidently had no role in the task of drafting either the Espéculo or the Fuero real, but served as an appropriate forum in which they could be promulgated.
A year had hardly elapsed when Alfonso X, inspired by the hope of gaining the crown of the Holy Roman Empire, ordered work to commence on the great law code known as the Siete Partidas. The Partidas, elaborated on the foundation of the Espéculo, was completed in 1265, but apparently it was not promulgated during Alfonso Xs reign. When Alfonso XI gave the Partidas the full force of law in the cortes of Alcalá 1348 (XXVIII.1), he declared that it had never before been promulgated.(15)
Reaction Against the Alfonsine Codes
During the cortes of Burgos 1272, the use of the Espéculo and the Fuero real was challenged, forcing the king to confirm the traditional fueros of the nobility and of the Castilian and Extremaduran [118] towns. Discontented with innovations in law and taxation, the nobles confronted the king at Burgos early in September, protesting that they and their vassals were judged by the fueros of the municipalities where they resided. The application of the Fuero real in the towns of Castile and Extremadura and of the Espéculo in the royal tribunal apparently prompted this objection. They also decried the lack of Castilian judges (alcaldes de Castilla) or noble judges (alcaldes fijosdalgo) to adjudicate their suits in the royal court--an assertion of the principle of trial by peers and an implied objection to the presence of Roman legists there. Declaring that the nobles should enjoy their customs as in the past and should not be judged according to the municipal fueros unless they wished, Alfonso X also promised to name Castilian judges in his court. If any noble had a quarrel with him, judgment would be given by the nobles themselves in accordance with the "ancient fuero." The nobles, professing to be satisfied, asked only that he confirm what he had said in the presence of the cortes.(16)
The cortes of Burgos 1272 was, without question, the most important of Alfonso Xs reign. The appointed time for the assembly was Michaelmas (September 29), and business continued to be transacted throughout the month of October and as late as Martinmas (11 November). Participants included "infantes, prelates, magnates, knights, nobles, and procurators of the towns." Once the cortes assembled, the disgruntled nobles, expressing fear for their safety, refused to enter the city unless the king granted them a truce and allowed them to bear arms. Stating that every man was secure in his court, Alfonso X nevertheless agreed to speak with the magnates and "all the men of the realm" at the Hospital of Burgos, not too far from the monastery of Las Huelgas, just outside the city walls. There he affirmed the pledges already made, but the magnates now escalated their demands to include matters relating to the administration of the realm and the taxation of their vassals. As before, they insisted on trial by their peers, demanding the appointment of two noble judges for this purpose. Perhaps they were influenced by Jaime Is promise in 1265 to name a justiciar from the ranks of the Aragonese nobility to adjudicate their suits. Although Alfonso X objected to the claim that none of his predecessors had ever appointed noble judges, he now promised to do so. A commission of knights, good men of the towns, clerics, and friars was also designated to hear the complaints of both the king and the magnates. According to [119] the fuero of Castile, the king was entitled first to receive amends, but he declared that he wished rather to correct any wrong that he might have done before seeking redress for wrongs done to him. He also promised to issue charters under the royal seal pledging to uphold their fueros and to observe the promises that he had made in the cortes.(17)
By confirming the traditional customs of the nobility and the fueros of the towns, Alfonso X significantly modified his plan to establish a single royal law applicable throughout his realms. The Fuero viejo (codified in its present form in the reign of King Pedro the Cruel), after stating tbat Alfonso X issued the Fuero del Libro to the towns of Castile in 1255, added that "they judged according to this book until St. Martins day in November" 1272. On the urging of the magnates, the king then restored the fueros that had been in use in the time of his predecessors, and also "ordered the men of Burgos to judge according to the old fuero as they used to before."(18)
Thus, Alfonso X assured both the nobility and Burgos (and probably the other Castilian and Extremaduran towns to whom he had given the Fuero real) that they would be judged by their old fueros once again. This would seem to imply that in disputes with townsmen the nobles would not be subject to the municipal fueros, and if they appeared in the royal court they would not be judged in accordance with the norms of the Espéculo. Henceforth, presumably, their suits would be adjudicated by noble judges appointed by the king.(19)
As the recalcitrant nobles repudiated their homage and fealty and prepared to go into exile in Granada, Alfonso X upbraided them, pointing out that "if they demanded fueros, he gave them to them, and granted them by his word in court and also by his privilege." The privilege in question probably was drawn up during the cortes of Burgos and may well be the text included in the chronicle, beginning "Estas son las cosas." In this and in subsequent negotiations with the nobility, Alfonso X promised to confirm their fueros, usages, and customs.(20)
Several charters confirm that Alfonso X also restored the old fueros to the Castilian and Extremaduran towns at this time. From 27 to 31 October 1272 at Burgos, he issued identical charters to Madrid, Soria, Béjar, Cuenca, and Sepúlveda, confirming their fueros and privileges. Similar charters were probably issued to all the Castilian and Extremaduran towns in return for the grant of an annual tribute to enable him to carry out his projected journey to the empire.(21)
[120] Although these charters, together with other evidence cited above, provide convincing evidence of the restoration of the municipal fueros, it is nevertheless apparent that the Fuero real continued in use. García Gallo, who believed that the Libro del Fuero was identical with the Espéculo, concluded that its application in the towns was now abrogated, and that its usage in the royal court was restricted to the so-called casos de corte, whose nature and extent were specified in the Ordinance of Zamora of 1274.(22)
The decisions taken in the cortes of Burgos 1272 to modify his juridical program prompted Alfonso X to consult with prelates, religious magnates, and judges of Castile and León (probably judges of the royal court) at Zamora in June to July 1274. Most historians have assumed that this was a meeting of the cortes, but I doubt that that was the case. Neither the text of the Ordinance nor that of the Leyes del Estilo citing the Ordinance (ley 91) refer to the cortes. The king had just concluded the cortes of Burgos in March 1274, and it seems improbable that he would convene another cortes so soon thereafter. After consulting his council concerning the functions of the royal tribunal, he promulgated the Ordinance of Zamora, specifying the cases pertaining exclusively to royal jurisdiction and regulating the roles of lawyers, judges, scribes, and the king himself in the administration of justice. While the Ordinance was not the work of the cortes, nor promulgated in the cortes, it did correspond to problems that had been elicited in previous meetings of the cortes and reflected the changed judicial situation after the confrontation at the cortes of Burgos in 1272.(23)
Ordinances Enacted in the Cortes
The law of the land also included royal charters, privileges, and ordinances, sometimes enacted in the cortes, sometimes not. The term ordenamiento, or ordinance (derived from ordenamos or ordene), was used commonly, as in France, to describe laws formally enacted. Ordinances drafted by the royal council usually employed such language as "mandamos" or "tenemoslo por bien," indicating that the initiative came from the king. The Ordinance of Zamora 1274 and the Ordinance of the Mesta 1278 are examples of ordinances enacted outside the cortes. Another was Sancho IVs ordinance on chancery revenues, which is no longer extant.(24)
Alfonso XIs Ordinances of Medina del Campo 1328, [121]Villarreal 1346, and Segovia 1347 were not enacted in the cortes, contrary to common opinion. Even so, the Ordinance of Medina del Campo was incorporated into the cuadernos of the cortes of Madrid 1329 and the Ordinances of Villarreal and Segovia into the Ordinance of Alcalá 1348.(25)
Many ordinances, however, were enacted by the king in the cortes. In a few instances, the text was prepared by the royal council and then promulgated in the cortes. The technical nature of Fernando IVs ordinance on the coinage promulgated in the cortes of Burgos 1302 necessitated its preparation by his council rather than by the cortes. An ordinance regulating his court and household, carcfully crafted by his council, was promulgated in the cortes of Valladolid 1312 (art. 1 -78). The royal iitiative in the preparation of both ordinances is suggested by the words mando, otrossi mando, or otrossi tengo por bien, with which each article begins.(26)
Alfonso XI, "with the counsel of the prelates, magnates, knights and good men who were with us in this cortes . . . and with the judges of our court," promulgated the Libro de las Leyes, better known as the Ordenamiento de Alcalá, in the cortes of Alcalá de Henares 1348. The technical treatment of a variety of legal and judicial matters reveals that this ordinance was prepared by the king and his council, or more precisely by the jurists of his court, and then promulgated in the cortes.(27)
Most of the ordinances enacted by the king in the cortes were in response to statements of grievances or petitions submitted to him and his council by one or another of the estates. No detailed information concerning the preparation of these texts exists, but it is apparent that the townsmen especially used the records of previous cortes--many issues were restated time and time again in nearly the same language. The towns of Castile, León, Extremadura, Andalusia, and Murcia presented separate statements (as for example in the cortes of Valladolid 1293), but evidently consulted one another during their preparation, as the similarity of their proposals makes clear. The royal council or committee appointed to review the texts often drew up an ordinance in the kings name, summarizing the proposals made and the action taken; perhaps in doing so the original statement was revised to suit the interests of the king.
The ordinances of Alfonso X usually stated what had been determined, but it was clear that he was acting in reply to detailed complaints [122] of failure to observe prior agreements, or deficiencies in government or in the economy. In the cortes of Seville 1252 he commanded the observance of the posturas made by Alfonso VIII, Alfonso IX, and Fernando III "for their own benefit, that of the people, and of the entire realm," and of the posturas that he now made with the counsel and consent of the infantes, bishops, magnates, knights, men of the orders, and good men of the towns. Posturas evidently meant a contractual agreement between the king and his people. Alfonso X declared that the laws in the Espéculo (I. 1.1) were "posturas, establishments and fueros," and he referred to the Espéculo itself as a Libro de posturas. Posturas then were laws, and in 1252 they were enacted by the king with the counsel and consent of the cortes.(28)
Six years later in the cortes of Valladolid he again ordered observance of the posturas enacted with the counsel and consent of infantes, prelates, nobles, and good men of the towns, who had first reached agreement among themselves. In the cortes of Seville 1261, when he asked for counsel, the assembly "reached their accord" concerning matters injurious to the realm and requiring correction. He set them down in a cuaderno, in fact repeating many of the articles enacted at Valladolid in 1258.(29) The cuadernos of the cortes of Seville 1252, Valladolid 1258, and Seville 1261 seem to have been based on texts previously approved by the king, updated as circumstances required, and presented to him again for confirmation.
In their cortes, Alfonso Xs successors often referred to his ordinances, at times quoting the texts verbatim. Touching on a variety of themes (such as excommunication, exports, usury, and pawnbroking), some of these ordinances may have been included in books of the Espéculo that are no longer extant; others may have been enacted in the cortes, though they are not identical with texts in the existing cuadernos.(30)
Sancho IVs ordinances enacted in the cortes of Palencia 1286, Haro 1288, and Valladolid 1293 attended to the grievances of his people. After the townsmen had taken counsel among themselves at Palencia 1286, he accepted their statement of grievances. When he exempted the people from many taxes at Haro 1288, he was apparently responding to general complaints about the burden of taxation, rather than to specific grievances. The towns of Castile, León, Extremadura, Andalusia, and Murcia at Valladolid 1293, after reaching agreement among themselves, presented him with five separate statements of grievances.[123] The last four cuadernos are essentially the same, but they also reveal similarities to the Castilian text. At that time the practice of recording the text of the petition and then the royal response (usually, otrossi a lo que nos pidieron. . . tenemos por bien . . . ) was used for the first time, but it would be a mistake to say that this was the first instance when the cortes took the initiative in presenting its grievances to the king. The response occasionally was a simple consent (tenernoslo por bien e otorgamos gelo) but it might be a more extensive modification of the original petition."(31) Later cortes also referred to various ordinances enacted by Sancho IV.(32)
During the minority of Fernando IV, the regents promulgated several ordinances in his name. In the cortes of Valladolid 1295, after expressing concern to improve the estate of the realm and taking counsel with his regents and members of his court, the king declared, "we ordain and give and confirm and grant these things forever." Although the articles that followed were not set down in the form of petitions and responses, it is obvious that they were directed to specific demands for reform aired in the cortes. The prelates also "showed" the king "many grievances that they had received," to which he replied, with the consent of the regents and his court. The format of the ordinances enacted in the cortes of Cuéllar 1297, Valladolid 1298 and 1299, and Burgos 1301 was basically the same as that of the general cuaderno of Valladolid 1295. In the Leonese cuaderno of 1299 and that of Zamora 1301 he responded to specific petitions (otrossi me pidieron. . a esto uos digo).(33)
After the king came of age, he continued to record the petitions and then his replies in the cortes of Medina del Campo 1302 and 1305, and Valladolid 1307. At times his response was a simple assent (tengo por bien et mando), but more often than not it was highly nuanced. The first part of the cuaderno published in the cortes of Valladolid 1312, in which most articles begin otrossi tengo por bien, is in the form of an ordinance drawn up by the king and his court, but articles 79 to 105 contain his replies to petitions.(34)
The ordinances enacted by Infante Juan, Maria de Molina, and Infante Pedro in the cortes of Palencia 1313 stated the conditions on which they were accepted as regents for Alfonso XI by their respective constituents. The first nineteen articles of the ordinance enacted by Maria and Pedro were prepared by the assembly and accepted by the regents (otrossi ordenaron. . . tenemoslo por bien e otorgamos gelo). The [124] remaining thirty-one articles were petitions (otrossi nos pidieron . . .). The cuaderno of the cortes of Burgos 1315 is largely an amalgam taken from the texts of Palencia 1313. In addition to confirming the hermandad, whose text was incorporated into the cuaderno, the regents also replied to the petitions of the prelates. Two years later at Carrión, Infante Juan and Maria de Molina responded to the demands of the hermandad, employing the familiar formula (otrossi alo que nos pidieron. . . a esto rrespondemos. . . ). The cuaderno of the cortes of Medina del Campo 1318 was prepared in essentially the same manner. The cuaderno of the cortes of Valladolid 1322, recognizing Infante Felipe as regent (and whose substance was drawn from those of Palencia 1313, Burgos 1315, and Carrión 1317), began: "These are the conditions on which we accept a regent." In the same cortes, Juan the one-eyed answered petitions presented by the abbots and abbesses of Castile.(35)
By the time of Alfonso XIs majority, it was routine to record the text of each petition and then the kings answer, a practice that may have served the interests of both the crown and the cortes. As the text of the petitions tended to grow longer, the king and his court probably found it easier to reply article by article, giving a simple consent, qualifying the petition, or rejecting it altogether. The petitioners may also have preferred it that way, because they would then have a record of the petition as it was submitted originally, and could see at once to what extent the king had accepted, modified, or refused it. In the cortes of Valladolid 1325, Alfonso XI granted the petitions of the towns and swore to observe them. The same format was used in the ordinances enacted for the clergy at Valladolid 1325 and Medina del Campo 1326. In all three cases the king did not hesitate to alter or deny petitions. He asked the cortes of Madrid 1329 to inform him of matters needing amendment so he could correct them with its consent; then "what I agreed to and ordained and they advised me" was recorded in the cuaderno. His response--often a short statement of approval--followed each petition, though at times it changed or refused it. The formula employed in the assembly of Madrid 1339 varied somewhat but returned to a more customary pattern in the assemblies of Alcalá, Burgos, and León 1345, and in the cortes of Alcalá 1348 (a lo que nos pedieron. . a esto rrespondemos). The cuaderno of Alcalá 1348 contained the petitions and responses as well as several additional ordinances (art. 54- 131) enacted by the king on his own authority concerning, among others, usury, military stipends, and clothing.(36)
[125] Several other ordinances were enacted by the king in assemblies with one or another of the estates. Alfonso X, for example, on the request of Queen Violante and with the counsel of his court, rectified the grievances of the Extremaduran towns in the assembly of Seville in 1264, though no consistent formula was used to record each petition and reply. The posturas regulating prices and wages that were enacted in the assembly of Jerez 1268 were the outcome of consultation by the king with the infantes, prelates, and magnates who were present, as well as with merchants and other good men from the towns. The text, partially based on earlier attempts to regulate prices and wages, also included much that was new. With the counsel of his court, Fernando de la Cerda recorded each complaint of the prelates at Peñafiel in 1275, and then gave his reply (otrossi querellaron . . . tengo por bien . . . ). Although the wording of the ordinance published at Palencia 1311 indicates that Fernando IV was acting on his own in conceding the liberties of the church (otrossi tenemos por bien . . . ), it is known that he was responding to the challenge of the prelates. In the fall of that year, also at Palencia, he promised to observe articles presented to him by the nobility. Alfonso XI, endeavoring to encourage peace and friendship among the nobility, enacted an ordinance at Burgos in 1338 with the consent of the magnates, infanzones, and knights.(37)
One of the common elements in most of the ordinances enacted in the cortes was the royal confirmation of fueros, charters, and privileges granted by previous monarchs. The confirmations by Alfonso IX in the curia of León 1188 and Alfonso VIII at Burgos 1212 were typical in this regard.(38) Sometimes the king also confirmed specific acts of previous monarchs or of himself. In the cortes of Medina del Campo 1302 (art. 3), for example, Fernando IV ratified the actions taken by the regents during his minority, and at Valladolid 1312 (art. 43) he confirmed the pact he had made with the nobles at Palencia in the previous year. Similarly, Alfonso XI, in the cortes of Valladolid 1325, confirmed an ordinance on excommunication made by his predecessors (art. 9) and validated the decisions of his regents, save for any acknowledgment of the rights of the hermandad (art. 40).
The ordinances usually concluded with the kings confirmation of the text, his pledge to observe it, and his command that all the men of the realm heed it. In the cortes of Seville 1261, Alfonso X ordered "that all the aforesaid matters shall be kept and observed in every way and we forbid anyone to dare to act contrary to them in anything."(39) Some [126] times public officials were specifically directed to obey the ordinance or to execute certain of its articles. The royal confirmation was followed by a sanction, a penalty on those who violated the laws thus established. Fines, confiscation of property, exile, or placing the violators body and goods at the disposal of the crown were frequently cited. Alfonso X asked the bishops to excommunicate anyone who acted contrary to the dispositions of the cortes of Valladolid 1258.(40)
Copies of these texts, usually addressed to the entire realm (sepan quantos esta carta vieren . . . ) but at times to a particular town,(41) were given to all the participants. The distribution of these documents, described variously as ordinances, charters, privileges, or cuadernos,(42) was intended to give the widest publicity to the decisions reached by the cortes.
Observance of the Law
As a general principle, the king was expected to obey all the laws, including the ordinances enacted in the cortes. Both the Espéculo (I.1.9) and the Partidas (I.1.9) in its earliest redaction emphasized--in words reminiscent of the imperial law, Digna vox (Codex Justinianus, I.14.4)--that all men, but especially kings, ought to obey the laws. The kings themselves "are honored and protected by the laws," and "it is right that since they make [the laws] they should be the first to obey them." Otherwise both the king and his laws might be held in contempt. It is obvious, however, that the laws were not always enforced.
Several rulers did admit to transgressions of the laws. In the cortes of Seville 1252, Alfonso X acknowledged that, due to the pressures of war, the agreements made with the people by Alfonso VIII, Alfonso IX, and Fernando III had not been duly observed. In the cortes of Valladolid 1293, Sancho IV indicated that he was prepared to make amends for his previous negligence in observing the laws. Fernando IV complained to the cortes of Valladolid 1307 that there were so many articles in the cuaderno that it was difficult to keep track of them; even though he promised to keep a copy of the text in his chamber, he asked to be informed if he violated any of the articles (art. 36). Alfonso XI emphasized the paramount validity of the ordinance enacted in the cortes of Valladolid 1325 when he declared that no charters would be issued contrary to it (art. 42). In practice the king could and did neglect to observe the enactments of the cortes, as he was often reminded by that body, [127] but as a matter of principle both he and the cortes believed that he was bound by its acts.
If a king did act contrary to the ordinances enacted in the cortes, his mistake was usually attributed to negligence and inefficiency in government, rather than to royal imperiousness or a blatant disregard for the law. In the prologue to the Espéculo, Alfonso X declared that if anything in that book required amendment, he would amend it "with the counsel of his court." The Partidas (I.1.18) stated clearly that the laws ought not to be revoked "except with the great counsel of all the good men of the realm, the best and most honored and most knowledgeable." Thus although Sancho IV revoked many charters and abolished the hermandades, he did so in the cortes (Valladolid 1284).(43) Fernando IV assured the cortes of Medina del Campo 1305 that he would not revoke or violate any of the articles contained in the cuaderno without first summoning another cortes (art. 14 L).
The Cortes and the Law of the Land
Reflecting on the preceding discussion, several conclusions may be drawn. First, the cortes participated with the king in the legislative process, but it did not have exclusive control over it. Alfonso X claimed the initiative in making laws for the well-being of the people and the right to amend them if necessary. He exercised these rights when he drew up the Espéculo, a code of laws to be used in the royal court, and the Fuero real, a code of municipal law, but he apparently promulgated both codes in the cortes of Toledo 1254. That served not only to publicize them, but also to confer on them the sanction of the assembled estates of the realm. When these innovations in the law were subsequently challenged, the king had to confirm the traditional fueros of the nobility and of the towns in the cortes of Burgos 1272. The process of developing a uniform royal law for the entire realm was not abandoned, nor did the king yield his right to enact ordinances on his own authority. The most important of these later ordinances, the Ordinance of Alcalá, drawn up with the counsel of the royal court, was promulgated in the cortes of Alcalá 1348. During the same cortes, Alfonso XI gave the force of law to the Siete Partidas. The cortes thus provided the king with a convenient forum for the promulgation of law codes and ordinances prepared by jurists in the kings service.
A second conclusion is that the estates assembled in the cortes took [128] the legislative initiative when they submitted their petitions and requested redress of grievances. Once the king promulgated an ordinance accepting or rejecting their petitions, that ordinance was recognized as the law of the land. Fernando IV even admitted that he would not revoke ordinances enacted in the cortes, except in the cortes.
Third, a principal weakness of the cortes was the failure of the estates to join together in presenting common proposals to the king. Each estate acted on its own and did not recognize that its interests might be linked to those of the other estates.
Nor did the cortes develop any effective mechanism to monitor the enforcement of the laws. Existing only when the king chose to summon it, the cortes had no permanent delegation to oversee observance of the laws or to demand that the king rectify negligence or transgressions. In times of grave crisis the hermandades approximated this function, but they were fundamentally private associations rather than instruments of government, and they received legal sanction only when recognized by the king or his regents.
A European Perspective
A comparable struggle over the legislative role of parliamentary assemblies took place in other western European countries. The general purpose of such assemblies, as Afonso III of Portugal announced to the cortes of Leiria in 1254, was to consider "the estate of the realm and matters to be corrected and improved." In language more precise than that used in any other kingdom, Pedro III of Aragón expressed the legislative rule of the Catalan corts of Barcelona in 1283 when he declared that he would only make a general constitution or statute "with the approval and consent of the prelates, barons, knights, and citizens of Catalonia, or the greater and wiser part of those summoned." The thrust of the Statute of York enacted by Edward II of England in 1322 was similar, in that matters touching the estate of the king and the estate of the realm would be determined in parliament.(44)
As in Castile, the king might utilize the cortes to promulgate a law code or the assembled estates might take the opportunity to present their petitions to him. Jaime I of Aragón, for example, published the Code of Huesca in the cortes of Huesca in 1247. The Aragonese nobility and townsmen rather forcefully petitioned Pedro III and Alfonso [129] III in the cortes of Zaragoza in 1283 and 1287 to issue the Privileges of Union.(45)
Whether a king could ignore parliamentary enactments was much debated. In Portugal and France the king seems to have been able to do so without significant objection, but Alfonso III, in the general cortes for the Crown of Aragón held at Monzón in 1289, assured the Catalans that he would not enact a law contrary to the acts of the corts. Jaime II promised the corts of Barcelona in 1299 that he would submit to it any law requiring clarification. By contrast, in 1342 Edward III of England nullified a statute enacted in the parliament of the previous year that was not to his liking; the parliament repealed the offending statute the following year.(46)
Obviously, not every realm was advanced in its constitutional development, but even in states like Catalonia where the corts exhibited an acute consciousness of its role in legislative matters, the mere enunciation of a constitutional principle or a royal pledge to abide by the laws did not guarantee automatic observance thereafter.
Notes for Chapter 7
1. Martínez Marina, Teoría, BAE, CCIX, 323-325; Colmeiro, I, 66-71; Piskorski, 125; Pérez Prendes, Cortes, 111-114, 136-151; Procter, Curia, 204.
2. González, Alfonso IX, II, nos. 11-12, 84-85, 192, pp. 23, 26, 125, 129, 267.
3. See the Espéculo and Fuero real in Opúsculos legales del Rey Don Alfonso el Sabio, 2 vols., ed. Real Academia de la Historia (Madrid 1836), and Las Siete Partidas del Rey Don Alfonso el Sabio, 3 vols., ed. Real Academia de la Historia (Madrid 1807; reprint 1972); Gaibrois, Sancho IV, III, nos. 287, 295, pp. clxxv, clxxxiv-clxxxv.
4. Procter, Curia, 203-204; Primera Partida según el Manuscrito ADD. 20787 del British Museum, ed. Juan Antonio Arias Bonet (Valladolid 1975), I.1.13.
5. Post, "A Romano-Canonical Maxím, Quod omnes tangit, in Bracton and Early Parliaments," 163-240; Maravall, "La corriente democrática medieval en España y la fórmula Quod omnes tangit," 157- 175.
6. García Gallo, "Nuevas observaciones sobre la obra legislativa de Alfonso X," AHDE 46 (1976): 609-670, and "El Libro de las Leyes de Alfonso el Sabio: Del Espéculo a las Partidas," AHDE 21(1951): 345-528; Aquilino Iglesia Ferreirós, "Alfonso X el Sabio y su obra legislativa: Algunas reflexiones," AHDE 50 (1980): 531-561; Robert A. MacDonald, "Problemas políticos y derecho alfonsino considerados desde tres puntos de vista, AHDE 54 (1984): 25-53; OCallaghan, "Sobre la promulgación del Espéculo y del Fuero real," Estudios en homenage a Don Claudio Sánchez Albornoz en sus 90 años, III (1985): 167- 179.
7. Robert A. MacDonald, "El Espéculo atribuido a Alfonso X, su edición y problemas que plantea," España y Europa, un pasado jurídico común. Actas del I Simposio internacional del Instituto de Derecho Común, ed. Antonio Pérez Martin (Murcia 1986), 611-653; Craddock, "La cronología de las obras legislativas de Alfonso X el Sabio," AHDE 51(1981): 364-418.
8. CLC, I, 87-94; Craddock, "Cronología," 367; Martínez Marina, Ensayo histórico-critico sobre la antigua legislación y principales cuerpos legales de los reynos de León y Castilla (Madrid 1808), 349-350.
9. MacDonald, "El Espéculo," 642-644.
10. Charters to Aguilar de Campóo (14 March 1255), Sahagún (25 April), Oña (23 November); MHE, I, no. 27, pp. 57-62; Muñoz, Fueros, 3 13-320; Alamo, Oña, II, no. 537, pp. 656- 657.
11. The text in Opúsculos legales, II, 1-169, was finished at Valladolid on 30 August 1255. The editors (1, vi) indicated that most of the codices were dated 25 August in Valladolid; Craddock, "Cronología," 376-379; MacDonald, "Progress and Problems in Editing Alfonsine Juridical Texts," La Crónica 6 (1978): 74-81, identified at least thirty-six medieval codices.
12. CI.C, I, 94; CAX, 9, p. 8; El Fuero viejo de Castilla, prologue, pp. 2-3; Juan Sanz García, El Fuero de Verviesca y el Fuero real (Burgos 1927), 71, 398-399.
13. MHE, I, nos. 43-45, pp. 89-100; Ballesteros, "El Fuero de Atienza," BRAH 68 (1916): 264-270; Francisco Layna Serrano, Historia de la villa de Atienza (Madrid 1945), 503-504; Loperráez, Osma, III, nos. 60-61, pp. 86- 185; Juan Martín Carramolino, Historia de Ávila, su provincia y obispado (Madrid 1872), II, no. 8, pp. 491-493. Other charters dated 1257 to 1265 are in MHE, I, nos. 59, 83, 91, 102, pp. 124-127,175-180, 202-203, 224-228; AM Agreda, no. 8; AM Béjar, no. 4; Palacio, Madrid, I, 85-91; Ballesteros, "Itinerario," BRAH 107 (1935): 59, n. 1. The general confirmation to Extremadura is in Ubieto Arteta, Cuéllar, no. 21, pp. 60-65.
14. OCallaghan, "Promulgación," 177- 179.
15. García Gallo, "El libro de las Leyes," 391-402; Craddock, "Cronología," 386-398; Aquilino Iglesia Ferreirós, "Fuero real y Espéculo," AHDE 52 (1982): 111-191.
16. CAX, 22-24, pp. 18-21; Ballesteros, Alfonso X, 568-577; Procter, Curia, 133.
17. CAX, 25-26, pp. 21-23.
18. El Fuero viejo, prologue, pp. 1-3.
19. Ballesteros, Alfonso X, 581; Procter, Curia, 180, 191, 198.
20. CAX, 27-39, pp. 24-30.
21. Palacio, Madrid, I,113-117; AM Béjar, carpeta 1, doc. 5; Emilio Sáez et al., Los Fueros de Sepúlveda (Segovia 1953), no. 13, pp. 196-198; Privilegios reales y viejos documentos, X, Cuenca, no. 6; Aquilino Iglesia Ferreirós, "El Privilegio general concedido a las Extremaduras en 1264 por Alfonso X," AHDE 53 (1983): 487-488.
22. García Gallo, "El Libro de las Leyes," 406-407, and "Nuevas Observaciones," 649-650; MacDonald, "Problemas políticos," 38-41, 51-52, and "El Espéculo," 645-646.
23. CLC, I, 87-94; Aquilino Iglesia Ferreirós, "Las Cortes de Zamora de 1274 y los Casos de Corte," AHDE 41 (1971): 945-971; Procter, Curia, 137-138.
24. CLC, I, 87-94; MHE, I, no. 148, pp. 333-335; Gaibrois, Sancho IV, I, clxxx- clxxxviii.
25. Cortes of Madrid 1329, art. 1, (CLC, I, 401-437; Rafael Gibert, "El Ordenamiento de Villarreal 1346," AHDE 25(1955): 703-729; Galo Sánchez, "El Ordenamiento de Segovia de 1347," Boletín de la Biblioteca Menéndez Pelayo 4(1922): 301-320; CAXI, 93, pp. 228-229.
26. CLC, I,165-169 (to Illescas, 10 March 1303), 197-215 (1312); .MFIV, II, no. 229, pp. 344-346; Colmeiro, I,201-202; González Mínguez, Fernando IV, 141-142.
27. CLC, I, 492-593; Ignacio Jordán del Asso y del Río and Miguel de Manuel y Rodríguez, El Ordenamiento de Leyes que D. Alfonso XI hizo en las Cortes de Alcalá de Henares el año de 1348 (Madrid 1774; reprint Valladolid 1975).
28. Ballesteros," Cortes de 1252," 122; López Ferreiro, Fueros, 364; CLC,I,116, 129 (Valladolid 1293, art. 24 L, 27 C).
29. CLC, I, 54-63; Rodríguez Díez, Astorga, 715-720.
30. Excommunication (Zamora 1301, art. 11; Valladolid 1307, art. 24); chancery (Palencia 1286 art. 9); notaries (Valladolid 1293, art. 5 L; Zamora 1301, art. 5; Valladolid 1325, art. 12, from Fuero real, I.8.1); exports (Palencia 1313, art. 17 J; Burgos 1315, art. 17; Valladolid 1322, art. 43; Madrid 1339, art. 15); Jewish usury, debts, pawnbroking (Valladolid 1293, art. 21, 24 L, 23-24, 27 C; Zamora 1301, art. 10; Valladolid 1307, art. 18, 28; Palencia 1313, art. 30J; Burgos 1315, art. 26; Valladolid 1312, art. 100; Carrión 1317, art. 31; Valladolid 1322, art. 56, 58; 1325, art. 15).
31. CLC, I,95-99 (Palencia 1286), 99-106 (Haro 1288), 106-117 (Valladolid 1293, Castile), 117-130 (1293, León); Palacio, Madrid, I,139-150(1293, Extremadura); CODOM, IV no. 153, pp. 135-143 (1293, Murcia); Nieto Cumplido, Regionalismo, no. 20, pp. 155-166 (1293, Andalusia).
32. Haro 1288 (Valladolid 1293, art. 17 C); Palencia 1286 (Valladolid 1293, art. 20 L, 22 C, 25 C). Chancery (Medina del Campo 1302, art. 15; Madrid 1329, art. 31); Jews (Valladolid 1307, art. 18, 28; 1312, art. 100; Palencia 1313, art. 30 J); exports (Palencia 1313, art. 17 J; Burgos 1315, art. 17; Valladolid 1322, art. 43).
33. CLC, I,130-133 (Valladolid 1295), 133-135 (1295, prelates), 135- 136 (Cuéllar 1297), 136-139 (Valladolid 1298), 139-142 (Valladolid 1299, Castile), 142-145 (1299, León), 145-150 (Burgos 1301), 151-161 (Zamora 1301).
34. CLC, I,161-165 (Medina del Campo 1302), 165-169 (Burgos 1302), 169-172 (Medina del Campo 1305, León), 172-179 (1305, Castile), 179-184 (1305, Extremadura), 184- 197 (Valladolid 1307), 197-221 (Valladolid 1312).
35. CLC, I, 221-233, 233-247 (Palencia 1313), 147-272 (Burgos 1315, hermandad), 272-292 (Burgos 1315), 292-299 (1315, prelates), 299-329 (Carrión 1317), 330-336(Medina del Campo 1318), 337-369 (Valladolid 1322), 369-3 72 (1322, abbots).
36. CLC, I,372-389 (Valladolid 1325), 389-400 (1325, prelates), 401- 437 (Madrid 1329), 456-476 (1339), 477-483 (Alcalá 1345), 483-492 (Burgos 1345), 593-626 (Alcalá 1348), 627-637 (León 1345); López Ferreiro, Historia, VI, no. 14, pp. 61-71 (Medina del Campo 1326, prelates).
37. Ubieto Arteta, Cuéllar, no. 21, pp. 60-66 (Seville 1264); CLC, I, 64-85 (Jerez 1268); Menéndez Pidal, Documentos, no. 229, pp. 300-302 (Peñafiel 1275); MFIV, II, nos. 510, 541, pp. 736-737, 789-790 (Palencia 1311); CLC, I, 443-456(Burgos 1338).
38. Also Seville 1250; Valladolid 1282; Valladolid 1293 (art. 1 CLEM); Valladolid 1295 (art. 1); Cuéllar 1297 (art. 1); Valladolid 1298 (art. 5, 8); 1299 (art. 2 L, 14 C); Medina del Campo 1302 (art. 1-2); 1305 (art. 1 L, 11 CEL); Valladolid 1307, (art. 31); 1312 (art. 44, 84); Palencia 1313 (art. 13 M, 45J); Burgos 1315 (art. 3, 55); Medina del Campo 1318 (art. 9, 24); Valladolid 1322
(art. 104); 1325 (art. 9,24); Madrid 1329 (art. 1); 1339 (art. 1); Alcalá 1345 (art. 1); 1348 (art. 1).
39. Rodríguez Díez, Astorga, 720.
40. Confirmation is usually in an unnumbered paragraph at the end of the text. See Seville 1252, Valladolid 1258, Seville 1261, Palencia 1286, Haro 1288, Valladolid 1293, 1295, 1298, 1299, Burgos 1301, Zamora 1301, Medina del Campo 1302, 1305 (art. 14-15 LEM, 19 C), Valladolid 1307, 1312, Palencia 1313, Burgos 1315, Medina del Campo 1318, Valladolid 1322, 1325, Madrid 1329, Alcalá 1348.
41. Jerez 1268 (to Seville); Palencia 1286 (León); Cuéllar 1297 (Logroño).
42. Posturas (Seville 1252, Valladolid 1258, Jerez 1268); privilegio (Valladolid 1295, towns); carta (Valladolid 1295, prelates 1298, 1299; Burgos 1301, 1302; Valladolid 1322, 1325, bishops); ordenamiento (Zamora 1301, Burgos 1301, Medina del Campo 1302, Valladolid 1307, 1312; Medina del Campo 1318, Alcalá 1348); cuaderno (Medina del Campo 1305, Valladolid 1312, Palencia 1313, Burgos 1315, Carrión 1317, Medina del Campo 1318, Valladolid
1322; 1325, towns; Madrid 1329, Burgos 1338, Madrid 1339, Alcalá 1345, Burgos 1345, León 1345).
43. CSIV, 1, Pp. 69-70; Loaysa, Crónica, 35, p. 114.
44. Portugaliae Monumenta Historica, Leges (Lisbon 1856), I,183; Cortes de los antiguos reinos de Aragón y de Valencia y Principado de Cataluña (Madrid 1896-1919), I, pt. 1, p. 145; Statutes of the Realm (London 1810-1828), I,189.
45. Los Fueros de Aragón, ed. Gunnar Tilander(Lund 1937), II, 7-8; García Gallo, Manual, II, nos. 1072, 1095, pp. 895-901, 93 3-936.
46. García Gallo, Manual, II, no. 151, Pp. 95-96; Cortes de... Cataluña,I,170; Statutes of the Realm, I, 297; Rotuli Parliamentorum, II, 126-131, 135-139.
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